DECISION The appellant, Muhammad Munir Butt was employed a as Tally Clerk in Crescent Jute Products Limited, Jaranwala. He was dismissed from service on 6-5-1975. He challenged the order of dismissal under section 25-A of the Industrial Relations Ordinance, 1969, in the Junior Labour Court.
His petition was accepted on 9-1-76. The learned Junior Labour Court observed that the inquiry was not properly held. The appellant was ordered to be re-instated but it was further remarked, "the employer may hold a fresh inquiry against him on these charges within two months of the date of this order. The question of back benefits will depend on the result of this inquiry". Aggrieved by the above observation, the appellant has come up in appeal. His grievance is that the remarks were uncalled for and the employer may be restrained from holding fresh inquiry and that direction be issued to give him back benefits.
2. The appellant was charge-sheeted under Standing Order No. 15 (iii), (e), (i) and (j). The charge was that the appellant was guilty of the following misconducts-
(1) habitual absence without leave;
(2) habitual negligence or neglect of duty;
(3) frequent repetition of negligence or neglect of work.
3. The charge-sheet is at page 65 of the record of the lower Court. I have tried my best to understand what the actual charges against the appellant were. Truly speaking I feel great difficulty or inability to understand the real nature of the charges. The first para. states that the appellant has become habitual of availing too many leaves without adopting the correct procedure. The second para. says that he obtained 44 days leave during one year, out of which 17 leaves were sanctioned with pay and 27 days leave were sanctioned without pay. The third para. says that he applied for leave during February, 1975 for six days leave out of which one day leave was sanctioned and the remaining leave, though on medical grounds was not sanctioned because he lead no leave on his credit.
4. In brief the nut-shell of the charge-sheet was that the appellant had applied for leaves which were rejected and so he was guilty of the above charges. My conclusion is that at the maximum there should have been only one charge against the appellant that he was guilty of habitual absence without leave. The report of the Inquiry Officer is at page 81 of the record. He gave a finding about leave from 2-11-74 to 5-11-74. He admitted that the leave application was given on 2- 11-74 but the medical certificate was fur--nished on 4-11-74, therefore, the leave was rightly rejected by the Management. About other days there is no finding and the final conclusion of the Inquiry officer was that the appellant wag guilty of habitual absence without leave, he was not guilty of habitual negligence or neglect of work but he was guilty of frequent repetition of negligence or neglect of work.
5. The finding on the third charge is, on the face of it absurd. If the appellant is not guilty of habitual negligence or neglect of work, with no stretch of imagination he could be held guilty for frequent repetition of negligence or neglect of work. The only charge against the appellant was that he was guilty of habitual absence without leave. There is no doubt that he obtained 44 days' leave during one year. All these leaves were duly sanctioned, of course some of the leaves were sanctioned with pay and tae remaining leaves were sanctioned without pay but on the bass of this allegation it cannot be said that he was guilty of habitual absence without leave. The only charge, which according to the Inquiry Officer stands proved, was that the appellant applied for leave from 2-11- 74 to 5-11-74 on medical grounds but this leave was rightly rejected by the Management because the medical certificate was not furnished on 2-11-1974 but it was furnished on 4-11-1974. It may be submitted that the medical certificate was issued by the Social Security Institution and section 72 of the Social Security Ordinance bars an employer to dismiss, discharge or otherwise punish an employee during the period in which the employee is in the medical care of the Institution.
Ordinarily, the Management must have accepted the medical certificate its correct unless there was definite proof that a bogus certificate had been obtained. The medical certificate was rejected on the ground that it was furnished on 4-11-1974 and not on 2-12-1974. Whatever the case may be no punishment could be awarded to the appellant in view of the statutory provision given in section 72.
6. The net result is that the order of dismissal was illegal. Accordingly, the appeal is accepted, the respondent is restrained from holding any fresh inquiry and a direction is issued tot he respondent to give back benefits to the appellant.